Defendant strangled Theresa Caizza with a knotted towel for several minutes until she died from asphyxia, a lack of oxygen in her body tissues. The couple had been living together for four months and were about to be married. A jury rejected defendant's insanity defense and found him guilty of purposeful or knowing murder (N.J.S.A. 2C:11-3(a)(1) or (2)) and other crimes related to his flight: second-degree kidnapping of the victim's three-year-old daughter (N.J.S.A. 2C:13-1(b)(1)), third-degree burglary of the home of the victim's mother and stepfather (N.J.S.A. 2C:18-2) and third-degree theft of the mother's and stepfather's car (N.J.S.A. 2C:20-3(a)). The trial judge imposed concurrent prison terms of 30 years without parole for the murder, 7 years for the kidnapping, 4 years for the burglary and 4 years for the theft. The main issue raised on this appeal is whether the trial judge erred in refusing to submit to the jury the defense of diminished capacity (N.J.S.A. 2C:4-2). We conclude that his ruling was correct, but not for the reason he gave.

Two psychiatrists testified, one for each side. Dr. Seymour Kuvin testified that defendant suffered from schizophrenia, a mental disease that Dr. Kuvin believed rendered defendant unable to "formulate an intent to knowingly or willfully kill

Theresa Caizza" and unable to "understand the nature and quality of his acts." Dr. Steven Simring testified in rebuttal for the State. In his opinion, defendant did not suffer from schizophrenia because he had never experienced delusions or hallucinations which are essential symptoms of the disease. He concluded that defendant suffered from an "antisocial personality disorder" that did not prevent him from acting purposefully or knowingly or from understanding the nature and quality of what he was doing or that it was wrong. Dr. Simring testified that defendant had the requisite state of mind to commit murder. He concluded that the fatal act was "impulsive and that it was angry, that it was poorly thought out."

The trial judge refused to charge "diminished capacity" as a defense because he believed that the defense was no longer available under the Code. Before adoption of the Code, a murder was presumed to be in the second degree. The State had the burden of proving certain facts to elevate the crime to murder in the first degree. State v. Williams, 29 N.J. 27, 44 (1959). Specifically, the State had to prove that the killing was "willful, deliberate and premeditated." N.J.S.A. 2A:113-2. Using the labels "partial responsibility" or "diminished capacity," courts, before adoption of the Code, admitted "evidence of any defect, deficiency, trait, condition, or illness which rationally bears upon the question whether those mental operations[, willfulness, deliberation and premeditation,] did in fact occur. . . ." State v. DiPaolo, 34 N.J. 279, 295 (1961), cert. den., 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). (Emphasis in original.) If the homicide was a murder, but the evidence of "diminished capacity" raised a reasonable doubt as to whether the defendant's conduct was willful, deliberate and premeditated, the defendant could only be found guilty of second-degree murder.

The trial judge correctly concluded that the Code has eliminated that use of the "diminished capacity" concept. However, N.J.S.A. 2C:4-2 (the statute) preserves the concept in a somewhat different form. As first adopted the statute provided:

2C:4-2 Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense.

a. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense.

The statute made admissible evidence of a defendant's mental disease or defect to negate the culpable mental state that is an element of any offense. "Diminished capacity" was no longer limited to negating the mental state of only first-degree murder.

Before the statute became effective, however, the Legislature amended it to read:

2C:4-2 Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense.

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. [ L. 1979, c. 178, § 11B]

As amended, the statute made clear that the State did not have to prove the absence of "diminished capacity" unless evidence was produced demonstrating that the defendant had a "mental disease or defect which would negate a state of mind which is an element of the offense." In effect, the amended statute established "diminished capacity" as an affirmative defense because, like defenses expressly designated "affirmative" in the Code, "diminished capacity" did not have to be disproved by the State "unless and until there is evidence supporting such defense." N.J.S.A. 2C:1-13(b)(1). The State was not required to overcome "diminished capacity" with proof beyond a reasonable doubt until the trial judge determined that the defense found some support in the evidence. See State v. Kelly, 97 N.J. 178, 200 (1984).

The statute arrived at its present form with the adoption of L. 1981, c. 290, § 8, (the 1981 amendment) which added the following sentence:

Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

By characterizing "diminished capacity" as an affirmative defense, the 1981 amendment added nothing. But by requiring that the "diminished capacity" defense "be proved by a preponderance of the evidence," the Legislature made the defense less available than when it was simply an affirmative defense that would be raised by the production of any evidence.

The State is constitutionally compelled to bear the burden of proving every element of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 375 (1970); State v. Brown, 80 N.J. 587, 592-593 (1979). That mandate is repeated in N.J.S.A. 2C:1-13(a). N.J.S.A. 2C:1-13(b)(2) provides, however, that the requirement that the State prove an element of the offense beyond a reasonable doubt does not "[a]pply to any defense which the code or another statute requires the defendant to prove by a preponderance of the evidence or such other standard as specified in this code." The Criminal Law Revision Commission report in commenting on this provision expressed "doubt as to the wisdom and, perhaps, the propriety of a provision which switches the burden of persuasion" to a defendant "where we are dealing with an element of the offense." II Final Report of the New Jersey Criminal Law Revision Commission: Commentary at 36-37 (1971).

If N.J.S.A. 2C:4-2 were to mean that a defendant has the burden of persuading the trier of fact that he had a mental disease or defect that prevented him from having the mental state which is an element of the offense charged, the statute may be unconstitutional because it would relieve the State of its burden to prove one of the elements of the offense beyond a reasonable doubt. The statute, however, does not have that meaning. The State need not overcome a "diminished capacity" defense until evidence of that defense is admitted. The effect of the statute is to render such evidence admissible only after

the trial judge has been persuaded by a preponderance of the evidence that the defense is sound.

The Legislature enacted the amendment because it was concerned that unlike evidence of the usual affirmative defenses, evidence of "diminished capacity" frequently takes the form of a psychiatric opinion that is not generally shared by experts and is not designed to meet the statutory test of criminal responsibility. The nature of the mind is still so little understood that a psychiatric opinion, honestly held, is usually available to prove the presence of mental disease or defect whenever a defendant's conduct is extraordinarily deviant. Indeed, the ease with which "diminished capacity" can be raised has led many states to reject the defense. See cases collected in State v. Humanik, 199 N.J. Super. 283, 298-299 (App.Div.1985), certif. den. 101 N.J. 266 (1985).

We therefore hold that N.J.S.A. 2C:4-2 requires the trial judge to determine whether the evidence of "diminished capacity" is of sufficient substance to be admissible. The judge, not the jury, must be persuaded by a preponderance of the evidence that the defendant suffered from a "mental disease or defect which would negate a state of mind which is an element of the offense." If the judge is so persuaded, the evidence is admissible and the State must then overcome it at trial beyond a reasonable doubt in order to establish the "state of mind which is an element of the offense."

The language of the statute and its legislative history support our holding. From its first version, the statute has unvaryingly spoken in terms of the admissibility of evidence:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense.

That language gives the statute its character as a rule of evidence as well as a rule of substantive law. The 1981 amendment thus places on the defendant the burden of establishing the admissibility of the evidence, not the burden of persuading the trier of fact to believe it.

The sponsor's statement to the 1981 amendment states that the amendment "provides that evidence of mental disease or defect must be established by the defendant by a preponderance of the evidence." (Emphasis added.) That is, the amendment provides for establishing the admissibility of "diminished capacity" evidence, not for how that evidence, if admitted, is to be considered by the trier of fact.

An interpretation of the statute that places on a defendant the burden of proving the defense of "diminished capacity" to a jury by a preponderance of the evidence, not only would bring into question its constitutionality but would produce an impractical result. It is impractical to expect a jury to perform their function intelligently when instructed that they must first decide whether they have been persuaded by a preponderance of the evidence that the defendant did not have the offense's culpable state of mind because of mental disease or defect, and, if they are not so persuaded, they must then be persuaded beyond a reasonable doubt that the defendant did have the culpable state of mind in order to convict him. The judge would have to instruct the jury that if the defendant fails to convince them by a preponderance of the evidence of the "diminished capacity" defense, they must disregard any reasonable doubt that evidence raised concerning his culpable state of mind when considering whether the State has proved that he had that culpable state of mind beyond a reasonable doubt. We do not believe that the Legislature intended that juries be required to make such a fine distinction.

In another context the Supreme Court has recognized that while a fine legal distinction can be made in defining negligence depending upon whether injury resulted to the negligent party or to others, the distinction must be ignored:

It is not unusual in the trial of criminal cases for a judge to conduct a hearing out of the jury's presence, pursuant to Evid.R. 8(1), in the course of which he must make findings of fact to establish the admissibility of evidence. Miranda and Wade hearings are commonplace. Some other examples may be found in State v. Kelly, 61 N.J. 283, 294 (1972) (admissibility of confession defendant claims he gave involuntarily); State v. Moore, 158 N.J. Super. 68 (App.Div.1978) (admissibility of business entries); State v. Sands, 138 N.J. Super. 103 (App.Div.1975), aff'd, 76 N.J. 127 (1978) (admissibility of an "excited utterance"); State v. Phelps, 187 N.J. Super. 364 (App.Div.1983), aff'd, 96 N.J. 500 (1984) (admissibility of the statement of an alleged co-conspirator); State v. Driver, 38 N.J. 255, 287-288 (1962) (admissibility of sound recordings) and State v. Wilson, 158 N.J. Super 1 (App.Div.1978), certif. den., 79 N.J. 473 (1978) (admissibility of "other crimes" evidence).

Because the purpose of the hearing will be to test the defendant's trial evidence, the defendant should not be permitted to testify at the hearing if he will not testify at trial. In fairness to the defendant, the hearing should therefore be conducted after the State has rested so that he will have a sufficient opportunity to decide whether to testify. Where appropriate, the judge should encourage the parties to rely on the reports of experts in order to expedite the hearing. If the judge rules that the evidence is admissible, the trial will then proceed as would any trial where an affirmative defense has been raised in the evidence; that is, the evidence will be admitted without comment to the jury by the judge and the judge will include in his charge an instruction that the State must prove beyond a reasonable doubt that the defendant did not have a mental disease or defect that prevented him from

In his dissent our colleague adheres to the view he expressed in State v. Humanik, 199 N.J. Super. 283 (App.Div.1985), certif. den. 101 N.J. 266 (1985), that the statute requires a defendant to persuade the trier of fact by a preponderance of the evidence only that he suffered from a mental disease or defect and, if the defendant satisfies that burden, the State then has the usual burden of proving beyond a reasonable doubt that the mental disease or defect did not prevent the defendant from having the mental state which is an element of the offense. In our opinion that interpretation fails to recognize the Legislature's expressed intent to place upon the defendant the burden of proving not only that he had a mental disease or defect but that the disease or defect prevented him from having the mental state which is an element of the offense. The statute provides in part:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. . . Mental disease or defect is an affirmative defense which must be proved ...

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